Re Siamah and Another

HCAL 1907/2018

[2021] HKCFI 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1907 OF 2018

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 20 July 2021

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D E C I S I O N

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The application

1.The applicants are illegal immigrants.  The 1^st applicant is the mother of the 2^nd appellant, on whose behalf and herself, she lodged a non-refoulement claim with the Director of Immigration (“the Director”).  The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”).  Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decisions.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 7 August 2020 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

4.The applicants filed a summons dated 24 August 2020 applying for extension of time to appeal against the Court’s decision.  The file was misplaced and the application has not been dealt with in the usual time.

5.In her affirmation in support of their application, the 1^st applicant said that she does not understand English nor the judicial system.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

7.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.The Board had taken the opportunity of asking questions from the 1^st applicant at the hearing on 10 March 2016 and found that her evidence in relation to her being harmed by Titin, her creditor, was incredible [36]; and that her fear of harm in relation to both herself and her son at the hands of Titin if she was to be refouled to Indonesia were based on false assertions, speculation and hearsay evidence of the 1^st applicant [40]; that her son would be discriminated in Indonesia was not well-founded but more speculative in nature [41].  See the detailed reasons in paragraphs 28-41 of the Board’s Decision.  The references are those in the Board’s Decision.

9.The 1^st applicant has not been able to say in what respect had the Board erred in its Decision.

10.Her grounds in support of this application are not valid to show that they have any realistic chance of success in their intended appeal.

11.In the circumstances, I refuse to extend time for their appeal.  Accordingly, I dismiss their application.

The applicants were unrepresented.